Source document: https://docs-lawep.s3.us-east-2.amazonaws.com/1698941139452.pdf (South Africa)
REPUBLIC OF SOUTH AFRICA PORTFOLIO COMMITTEE AMENDMENTS TO NATIONAL ENVIRONMENTAL LAWS AMENDMENT BILL [B 14B—2017] (As agreed to by the Portfolio Committee on Environmental Affairs (National Assembly)) [B 14C—2017] No.

of copies printed ....................................... 400 ISBN 978-1-4850-0537-7 2 AMENDMENTS AGREED TO NATIONAL ENVIRONMENTAL LAWS AMENDMENT BILL [B 14B—2017] CLAUSE 3 1.

On page 6, in line 31, to omit ‘‘(5)’’, and to substitute ‘‘(5)(bA)’’.

2.
2.

On page 6, in line 31, to omit ‘‘paragraph (bA)’’, and to substitute ‘‘subparagraph (i)’’.

1.

On page 7 in line 14, to omit ‘‘extractions’’, and to substitute ‘‘extraction’’.

CLAUSE 4 1.

Clause rejected.

CLAUSE 5 NEW CLAUSE Amendment of section 24G of Act 107 of 1998, as substituted by section 6 of Act 62 of 2008 and section 9 of Act 30 of 2013 5.
Section 24G of the National Environmental Management Act, 1998, is hereby amended— (a) by the substitution in subsection (1) for paragraph (b) of the following paragraphs: ‘‘(b) has commenced, undertaken or conducted a waste management activity without a waste management licence in terms of section 20(b) of the National Environmental Management: Waste Act, 2008 (Act No.
59 of 2008)[,]; is in control of, or successor in title to, land on which a person— (i) has commenced with a listed or speciﬁed activity without an environmental authorisation in contravention of section 24F(1); (c) (ii) has commenced with, undertaken or conducted a waste management activity in contravention of, section 20(b) of the National Environmental Management: Waste Act, 2008 (Act No.
59 of 2008), the Minister, Minister responsible for mineral resources or MEC concerned, as the case may be[,]— (aa) [may] must direct the applicant to— [(i)](A) [(ii)](B) immediately cease the activity pending a deci- sion on the application submitted in terms of this subsection, except if there are reasonable grounds to believe the cessation will result in serious harm to the environment; investigate, evaluate and assess the impact of the activity on the environment; [(iii)](C) remedy any adverse effects of the activity on the environment; [(iv)](D) cease, modify or control any act, activity, process or omission causing pollution or envi- ronmental degradation; 3 [(v)](E) contain or prevent the movement of pollution or degradation of the environment; [(vi)](F) eliminate any source of pollution or degrada- tion; [(vii)](G) compile a report containing— [(aa)](AA) a description of the need and desir- ability of the activity; [(bb)](BB) an assessment of the nature, extent, duration and signiﬁcance of the consequences for, or impacts on, the environment of the activity, including the cumulative effects and the manner in which the geo- graphical, physical, biological, so- cial, economic and cultural aspects of the environment may be affected by the proposed activity; [(cc)](CC) a description of mitigation mea- sures undertaken or to be under- the conse- taken in respect of quences for, or impacts on, the environment of the activity; [(dd)](DD) a description of the public partici- pation process followed during the course of compiling the report, including all comments received from interested and affected parties and an indication of how the issues raised have been addressed, if ap- plicable; and [(ee)](EE) compile an environmental man- agement programme; [or] and (F) undertake public participation as pre- scribed; and [(viii)](bb) may direct the applicant to provide such other information or undertake such further studies as the Minister, Minister responsible for mineral resources or MEC, as the case may be, may deem
 necessary.’’; (b) by the substitution for subsection (4) of the following subsection: ‘‘(4) A person contemplated in subsection (1) must pay an administrative ﬁne, which may not exceed [R5] R10 million and which must be determined by the competent authority, before the Minister, Minister responsible for mineral resources or MEC concerned may act in terms of subsection (2)(a) or (b).’’.
CLAUSE 17 1.
On page 13, from line 51, to omit paragraph (e) and to substitute the following paragraph: (e) by the substitution for subsection (4) of the following subsec- tion: ‘‘(4) Despite the provisions in subsections (2A) and (3), [with the concurrence of] after the Minister may, consultation with the Minister responsible for mineral resources, [if the environmental mineral resource in- spectors are unable or not adequately able to fulﬁl the compliance and enforcement functions,] if it is neces- sary to address signiﬁcant harm to the environment caused by prospecting, exploration, mining or production activi- ties, [designate] direct the environmental management 4 inspectors to implement or support the implementation of these functions in terms of this Act or a speciﬁc environ- mental management Act in respect of which powers have been conferred on the Minister responsible for mineral resources.’’.
2.

On page 14, from line 5, to omit paragraph (f).

3.

On page 14, from line 9, to omit paragraph (g) and to substitute the following paragraph: ‘‘(g) by the substitution in subsection (8) for the words preceding paragraph (a) of the following words: to subsection (7), the Minister may, [in ‘‘Subsequent concurrence] after consultation with the Minister respon- sible for mineral resources, within a reasonable period of time and where appropriate, direct the environmental management inspectors to—’’.

1.
1.

Clause rejected.

CLAUSE 34 NEW CLAUSE 1.

That the following be a new clause.

34.

Section 43 of the National Environmental Management Act, 1998, is hereby amended— (a) by the insertion after subsection (1B) of the following subsec- tion— ‘‘(1C) Any person may appeal against a decision made by the licensing authority contemplated in section 36(1) or 47A of the National Environmental Management: Air Quality Act, 1998 (Act No.
39 of 2004), in the case of municipalities, to the municipal council.’’; and (b) by the substitution for subsections (7), (8) and (9) of the following subsections, respectively: ‘‘(7) An appeal under this section suspends an environ- mental authorisation, exemption[,directive,] or any other decision made in terms of this Act or any other speciﬁc environmental Act, or any provision or condition attached thereto, except for a directive or other administrative enforcement notice that is aimed at addressing signiﬁcant harm to the environment, issued in terms of this Act or any other speciﬁc environmental management Act.
(8) A person who receives a directive in terms of section 28(4) may lodge an appeal against the decision made by the Director-General or any person acting under his or her delegated authority, the Director-General of the department responsible for mineral resources or any person acting under his or her delegated authority, [or] the provincial head of department or any person acting under his or her delegated authority or the municipal manager of a munici- pality or any person acting under his or her delegated authority, to the Minister, the Minister responsible for mineral resources [or], the MEC or the municipal council, as the case may be, within thirty days of receipt of the directive, or within such longer period as the Minister, the Minister responsible for mineral resources [or], MEC or municipal council may determine.
5 the appeal, (9) [Notwithstanding] Despite subsection (7) [and], pending the ﬁnalisation of the Minister, Minister responsible for mineral resources [or], the MEC or municipal council, as the case may be, may, on application and on good cause shown, direct that [any part or provision of the directive not be suspended, but only strictly in exceptional circumstances and where there is an imminent threat to human health or the environ- ment.
]— (a) the environmental authorisation, exemption or any other decision made in terms of this Act or any other speciﬁc environmental management Act, or any pro- vision or condition attached thereto may wholly or in part, not be suspended; or the directive or any administrative enforcement notice that is aimed at addressing signiﬁcant harm to the environment, issued in terms of this Act or any other speciﬁc environmental management Act or part thereof, be suspended.’’.

(b) 1.

Clause rejected.


CLAUSE 38 NEW CLAUSE 1.

That the following be a new clause: Amendment of section 48 of Act 57 of 2003, as substituted by section 18 of Act 31 of 2004 and section 21 of 2014 38.
Section 48 of the National Environmental Management: Protected Areas Act, 2003, is hereby amended— (a) by the substitution in subsection (8) for the words preceding paragraph (a) of the following words: ‘‘Despite other legislation, no person may conduct com- mercial prospecting, mining, exploration, production or activities related to prospecting, mining, exploration or production—’’; (b) by the substitution in subsection (1) for paragraph (b) of the following paragraph: ‘‘(b) in a protected environment without the written permission of the Minister [and the Cabinet mem- ber responsible for mineral and energy affairs]; or’’; (c) by the substitution for subsections (2), (3) and (4) of the following subsections: ‘‘(2) The Minister, after consultation with the Cabinet member responsible for mineral resources [and energy affairs], must review all mining activities which were lawfully conducted in areas indicated in subsection (1) (a), (b) and (c) immediately before this section took effect.
(3) The Minister, after consultation with the Cabinet member responsible for mineral resources [and energy affairs], may, in relation to the activities contemplated in subsection (2), as well as in relation to mining activities conducted in areas contemplated in that subsection which were declared as such after the commencement of this section, prescribe conditions under which those activities may continue in order to reduce or eliminate the impact of 6 those activities on the environment or for the environmen- tal protection of the area concerned.
(d) by the substitution for subsection (4) of the following subsec- tion: (4) A person who wishes to apply for permission under subsection (1)(b) to conduct commercial prospecting, mining, exploration, production or activities related to prospecting, mining, exploration or production, must im- mediately on receipt of an environmental authorisation in terms of the National Environmental Management Act, submit his or her application in the prescribed manner to the Minister, together with— (a) any information, reports, studies conducted or consul- tation done for the environmental impact assessments process in respect of the activities under consideration in terms of Chapter 5 of the National Environmental Management Act; and (b) any appeal lodged in respect of the environmental authorisation.
(e) by the addition of the following subsections: (5) The Minister, when exercising his or her power in terms of subsection (1)(b)— (a) must take into account— (i) (ii) (iii) (iv) the principles contained in section 2 of the National Environmental Management Act; any information, reports, studies conducted or consultation done for the environmental impact assessments process in respect of the activities under consideration in terms of chapter 5 of the National Environmental Management Act; any appeal contemplated in subsection (4)(b); the ecological integrity of the protected environ- ment; (b) may, amongst others, take into account— (i) the potential impact on ecological functioning and ecosystem services provided by the protected environment to society; (ii) whether the protected environment diversity priority area for species; and is a bio- (iii) whether the protected environment is a strategic water resource area; (6) Despite subsection (4), the Minister may require the person who applies for the permission under subsection (1)(b), to provide any further information as he or she may deem necessary before making a decision.’’.
1.

Clause rejected.

CLAUSE 54 NEW CLAUSE 1.

That the following be a new clause: Insertion of section 47A in Act 39 of 2004 54.

The following section is hereby inserted in the National Environmental Management: Air Quality Act, 2004, after section 47: 7 Revocation or suspension of atmospheric emission licences ‘‘47A.
(1) The licensing authority may, by written notice to the holder of an atmospheric emission licence, revoke or suspend that licence if the licensing authority has evidence that the licence holder has contravened a provision of this Act or a condition of the licence and such contravention may have, or is having, a signiﬁcant detrimental effect on the environment, including health impacts.
(2) The licensing authority must before exercising the power in terms of subsection (1), in writing— (a) consult organs of state whose areas of responsibility may be affected by the exercise of the power; and (b) afford the holder of the atmospheric emission licence an opportunity to make a submission in respect of the intended revocation or suspension, which submission must be accompanied by an atmospheric impact report as contem- plated in section 30 of this Act.
(3) The licencing authority, when consulting in terms of subsection (2), must indicate the time period within which— (a) the organs of state must submit comments; and (b) the holder or the atmospheric emission licence must make his or her submission to the licencing authority.’’.

LONG TITLE 1.
On page 2, to omit the long title and to substitute the following: ‘‘To amend the— • National Environmental Management Act, 1998, so as to correct the citation to the deﬁnition of ‘‘Constitution’’; to add new deﬁnitions of ‘‘audit’’, ‘‘black’’, ‘‘environmental manage- ment instrument’’, ‘‘latent environmental impacts’’, ‘‘munici- pal council’’, ‘‘municipality’’, ‘‘municipal manager’’, ‘‘miti- gate’’, ‘‘rehabilitate’’, ‘‘remediate’’, ‘‘residual environmental impacts’’; to correct the deﬁnition of ‘‘environmental mineral resources inspector’’; to provide clarity to the deﬁnition of ‘‘ﬁnancial provision’’; to add a new environmental manage- ment principle promoting diversity in the sector; to provide clarity on what an environmental management instrument is; to use the term environmental management instrument consistently in the Act, to remove a duplicated provision for making regulations for laying down the procedures for the adoption of environmental management instruments; to pro- vide for a register and making available the register, of all environmental management instruments adopted in terms of the Act; to provide clarity that the Minister responsible for mineral resources is responsible for activities constituting prospecting, exploration, mining and production as well as those directly related to prospecting, exploration, extraction, primary processing of a mineral or petroleum resource; to clarify that the MEC can be regarded as the competent authority for providing environmental authorisation in the event that Cabinet identiﬁes that the Minister should be the competent authority, when there is agreement between the Minister and the relevant MEC; to provide for simultaneous submission of the National Environmental Management Act and the speciﬁc Environment Management Act applications for purposes of the one environmental system, in order to enable integrated environmental authorisation; to provide for a trigger for the simultaneous submission of a National 8 Environmental Management Act or speciﬁc
 environmental management Act applications after acceptance of mining right; to provide clarity that a successor in title or person who controls the land may also lodge a section 24G application relating to an environmental authorisation or a waste man- agement licence; to empower the Minister to prescribe the information that must be contained in an environmental management programme; to enable an environmental assess- ment practitioner to undertake the consultation to be under- taken with a State Department on application for environmen- tal authorisation; to provide clarity on what is to be audited in relation to ﬁnancial provisioning; to provide the Minister with the power to prescribe instances for which ﬁnancial provision- ing is required; to provide clarity that an applicant or holder of an environmental authorization, holder, holder of an old order right relating to mining activities must set aside ﬁnancial provision for progressive rehabilitation, mitigation, mine closure and the management of post closure environ- mental impacts; to identify the vehicles which must be used when providing the ﬁnancial provision; to allow the Minister responsible for water affairs access to the ﬁnancial provision to undertake rehabilitation and remediation if the holder of an environmental authorisation, holder, holder of an old order right fails to do so; to make it clear that the ﬁnancial provision may only be used for the purposes of progressive rehabilita- tion, decommissioning, closure and post—closure activities as prescribed; to allow for a three year review of the ﬁnancial provision and to require that the review decision be published within ﬁve days; to make it a requirement for the rehabilita- tion which can be undertaken annually to be undertaken; to provide for the Minister responsible for mineral resources in consultation with the Minister and the Minister responsible for Water Affairs to allow an annual drawdown of funds as prescribed within a certain timeframe
 before decommission- ing and closure; to require the transfer of funds provided for latent or residual environmental impacts to the Minister responsible for mineral resources on the issuing of a closure certiﬁcate; to require the Minister responsible for mineral resources to access funds provided for latent and residual impacts upon the issuing of a closure certiﬁcate; to include the holder of an environmental authorisation for a listed and speciﬁed activity for, or directly related to prospecting or exploration of a mineral or petroleum resource or extraction and primary processing of a mineral or petroleum resource, holder, holder of an old order right, under the provisions related to environmental liability and the requirement to plan, manage and implement mine closure procedures; to provide clarity that residue stockpiles and residue deposits must be managed in terms of this Act; to provide clarity that a section 28(4) directive may also be issued to an owner of the land, a person in control of the land or a person that has a right to use the land in question; to empower Director-General of the Department responsible for mineral resources and municipal manager to issue section 28(4) directives; to empower the Minister responsible for mineral resources to designate environmental mineral and petroleum inspectors from an organ of state that executes regulatory function; to empower the Member of Executive Council to designate environmental management inspectors to undertake compliance and enforce in respect of provincial environmental legislation; to empower the Minister to prescribe a Code of Conduct for environmen- tal management inspectors and environmental mineral and petroleum inspectors; to provide clarity that an environmen- 9 tal mineral and petroleum inspector must also undergo approved training before designation; to provide clarity on functions and general powers of environmental management inspectors when conducting investigations; to provide clarity
 that the conducting of a ‘‘search’’ is not the primary purpose of an environmental management inspector undertaking a routine inspection; to provide clarity that an environmental management inspector may detain an item for further analysis or veriﬁcation for purposes of determining compliance or not with applicable legal requirements; to provide clarity that the Minister’s power to develop regulations on admission of guilt ﬁnes contextualizes the related provisions of the Criminal Procedure Act, 1977; to empower the Minister responsible for Mineral Resources, Minister responsible for water affairs and a municipal manager to delegate functions and duties in terms of this Act; to provide clarity that a person may appeal a section 28(4) directive issued by a person acting on delegated authority; to empower the Minister of Environmental Affairs to act in circumstances necessary to address signiﬁcant harm to the environment caused by prospecting and mining activi- ties; to provide for appeal against a decision made by a licensing authority in terms of the National Environmental Management: Air Quality Act; to provide clarity on circum- stances where an appeal against a directive or other adminis- trative enforcement notice that is aimed at addressing signiﬁ- cant harm to the environment does not automatically suspend it; to provide clarity that an appeal against a directive must be lodged with the appropriate appeal authority; to correct references and cross references to offences and penalties, to make failure to comply with certain sections of the ﬁnancial provisioning an offence and to update the list of offences and penalties; • National Environmental Management: Protected Areas Act, 2003 so as to provide for the Chief Financial Officer of the South African National Parks to be a member of the Board; to provide for the process of application and the criteria under which a section 48 permission may be issued or rejected; to create a new offence for non-compliance with
 section 48A which prohibits certain activities in marine protected areas; to rectify incorrect references to offences; • National Environmental Management: Biodiversity Act, 2004, so as to provide clarity on deﬁnition of ‘‘control’’ and to insert deﬁnitions of ‘‘eradicate’’ and ‘‘well-being’’; to ensure that indigenous biological resources are used in an ecologically sustainable manner; to ensure that certain species remain in State custody despite their escape from land under the State’s control; to empower the Minister to prohibit certain activities that may negatively impact on the well-being of faunal biological resources; to provide for the Chief Financial Officer of the South African National Biodiversity Institute to be a member of the board; to provide clarity on measures to be undertaken to eradicate listed invasive species; to provide clarity on the steps, actions or methods to be undertaken to either control or eradicate listed invasive species; to ensure that the MECs responsible for environmental affairs follow the consultation process set out in sections 99 and 100 before exercising a power in terms of a provision under the Act; • National Environmental Management: Air Quality Act, 2004, so as to provide the Minister with discretion to establish the National Air Quality Advisory Committee; to provide clarity on the consequences of unlawful commencement of a listed activity; to provide clarity that a provincial department responsible for environmental affairs is the licensing authority 10 where a listed activity falls within the boundaries of more than one metropolitan municipality or more than one district municipality; to provide for textual amendment to section 36(5)(d); to provide for revocation or suspension of atmo- spheric emission licence; • National Environmental Management: Integrated Coastal Management Act, 2008, so as to allow for the removal of structures erected prior to commencement of the Act; to repeal Chapter 9 in order to align
 appeals with section 43 of the National Environmental Management Act, 1998; • National Environmental Management: Waste Act, 2008, so as to move all deﬁnitions from Schedule 3 to section 1; to provide for textual amendment to the deﬁnitions of ‘‘residue deposits’’ and ‘‘residue stockpiles’’ and ‘‘waste’’; to provide for the exclusion of residue stockpiles and residue deposits from the provisions of the Act; to provide for the Waste Management Bureau to be established as a public entity; to provide for the simultaneous submission of the site assessment report and remediation plan relating to contaminated land; to provide clarity that the Minister must keep a national register of all contaminated land; to provide clarity that the Minister responsible for mineral resources is responsible for implemen- tation of the waste management system in so far as it relates to a waste management activity that is directly related to prospecting, exploration, primary processing of a mineral or petroleum resource; to empower the Minister to take a decision in the place of the provincial licensing authority under certain circumstances; to provide for the payment of a processing fee for the variation of a waste management licence; to increase the ﬁnes that could be imposed in terms of regulations made under the Act; to provide clarity that there will be no exemptions provided from obtaining a waste management licence; to repeal Schedule 3; • National Environmental Management Amendment Act, 2008, so as to clarify that an environmental management programme or plan approved in terms of the Mineral and Petroleum Resources Development Act on or before and after 8 December 2014 is valid under the National Environmental Management Act; to provide clarity that an appeal against an environmental management programme or plan lodged in terms of the Mineral and Petroleum Resources Development Act must be ﬁnalised under that Act; • To provide for transitional provisions regarding residue
 stockpiles and residue deposits approved in terms of the National Environmental Management: Waste Act, 2008; to provide for transitional provisions regarding the continuation of the Waste Management Bureau; and to provide for matters connected therewith.
MEMORANDUM ON THE OBJECTS On page 42, to substitute the memorandum on objects.

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